By Frankfurt Kurnit

Governor Andrew Cuomo signed the Health and Essential Rights Act (“HERO Act”) into law yesterday, May 6, 2021, as a response to COVID-19 safety concerns in connection with New Yorkers returning to in-person work. The HERO Act will establish new health and safety standards as well as penalties for noncompliance. Here is what employers need to know:

Who is Covered?

The HERO Act will apply to New York employers of all sizes, and will provide protections to all persons providing labor or services for remuneration for a private entity within the state, which includes employees, independent contractors, domestic workers, home care and personal care workers, day laborers, farm workers and other temporary and seasonal workers.

New Health and Safety Standards

The Act requires that the NY Department of Labor establish industry-specific minimum requirements for preventing exposure to airborne infectious diseases within 30 days of the bill becoming law. The topics that must be addressed include health screenings, face coverings, PPE, hand hygiene cleaning and disinfecting, social distancing, compliance with applicable engineering controls (i.e. proper air flow and exhaust ventilation) and compliance with mandatory or precautionary orders of quarantine. 

All New York employers, regardless of size, will be required to implement, post and distribute a plan that complies with the minimum standards.

Joint Workplace Safety Committees

The HERO Act also requires that, effective 180 days following enactment, employers of ten or more employees must permit workers to establish and administer a “joint labor-management workplace safety committee” comprising at least 2/3 non-supervisory employees and that shall be co-chaired by a representative of the employer and non-supervisory employees. These committees are authorized to raise health and safety concerns, review and provide feedback on related employer policies, participate in site visits by government entities responsible for enforcing health and safety standards, and to review reports. Committee members must be permitted to meet at least quarterly during working hours and attend related trainings without loss of pay, and are protected from retaliation in connection with their role. 

Penalties

Employers who fail to adopt a plan will be subject to a penalty of $50 per day until a plan is implemented, and employers who fail to comply with their adopted plans face fines ranging from $1,000 to $10,000.

The HERO Act also provides employees with a private right of action, including the ability to seek injunctive relief, against their employer. Courts may award up to $20,000 in liquidated damages and attorneys’ fees to a prevailing plaintiff. 

The HERO Act will impose significant new health and safety obligations on New York employers, and companies should start taking steps now to prepare for compliance.

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